[Introduced March 14, 2013; referred to the Committee on the
Judiciary .]

____________

A BILL to amend and reenact §61-2-9 and §61-2-28 of the Code of
West Virginia, 1931, as amended, all relating
generally to
crimes against the person; and modifying the definitions of
"battery" and "domestic battery" to conform with federal laws.Be it enacted by the Legislature of West Virginia:
That §61-2-9 and §61-2-28 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:ARTICLE 2. CRIMES AGAINST THE PERSON.§61-2-9. Malicious or unlawful assault; assault; battery;
penalties.
(a) If any person maliciously shootshoots, stabstabs, cut
cuts or woundwounds any person, or by any means causecauses him
or her bodily injury with intent to maim, disfigure, disable or
kill, he or sheshall, except where it is otherwise provided, beis guilty of a felony and, upon conviction, shall be punished by
confinement in the penitentiaryimprisoned in a state correctional
facility not less than two nor more than ten years. If suchthe
act beis done unlawfully, but not maliciously, with the intent
aforesaid, the offender shall beis guilty of a felony and, upon
conviction, shall, in the discretion of the court, either be
confined in the penitentiaryimprisoned in a state correctional
facility not less than one nor more than five years, or be confined
in jail not exceeding twelve months and fined not exceeding $500.
(b) Assault. -- If any person unlawfully attempts to commit a
violent injury to the person of another or unlawfully commits an
act which places another in reasonable apprehension of immediately
receiving a violent injury, he or sheshall beis guilty of a
misdemeanor and, upon conviction, shall be confined in jail for not
more than six months, or fined not more than $100, or both such
fine and imprisonmentfined and confined.
(c) Battery. -- If any person unlawfully and intentionally
makes physical contact of an insulting or provoking nature with the
person of another or unlawfully and intentionally causes physical
harm to another person, he or sheshall beis guilty of a
misdemeanor and, upon conviction, shall be confined in jail for not
more than twelve months, or fined not more than $500, or both such
fine and imprisonmentfined and confined.
(d) Any person, convicted of a violation of subsection (b) or (c) of this section who has, in the ten years prior to saidthe
conviction, been convicted of a violation of either subsection (b)
or (c) of this section where the victim was a current or former
spouse, current or former sexual or intimate partner, a person with
whom the defendant has a child in common, a person with whom the
defendant cohabits or has cohabited, a parent or guardian, the
defendant's child or ward or a member of the defendant's household
at the time of the offense or convicted of a violation of section
twenty-eight of this article or has served a period of pretrial
diversion for an alleged violation of subsection (b) or (c) of this
section or section twenty-eight of this article when the victim has
sucha present or past relationship, shall upon conviction be
subject to the penalties set forth in section twenty-eight of this
article for a second, third or subsequent criminal act of domestic
violence offense, as appropriate.§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery. -- Any person who unlawfully and
intentionally makes physical contact of an insulting or provoking
nature with his or her family or household member or unlawfully and
intentionally causes physical harm to his or her family or
household member, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for not
more than twelve months, or fined not more than $500, or both fined
and confined.
(b) Domestic assault. -- Any person who unlawfully attempts to
commit a violent injury against his or her family or household
member or unlawfully commits an act which places his or her family
or household member in reasonable apprehension of immediately
receiving a violent injury, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail
for not more than six months, or fined not more than $100, or both
fined and confined.
(c) Second offense. -- Domestic assault or domestic battery.
A person, convicted of a violation of subsection (a) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article or subsection (a), section fourteen-g of this article where
the victim was his or her current or former spouse, current or
former sexual or intimate partner, person with whom the defendant
has a child in common, person with whom the defendant cohabits or
has cohabited, a parent or guardian, the defendant's child or ward
or a member of the defendant's household at the time of the offense
or who has previously been granted a period of pretrial diversion
pursuant to section twenty-two, article eleven of this chapter for
a violation of subsection (a) or (b) of this section, or a
violation of subsection (b) or (c), section nine of this article or
subsection (a), section fourteen-g of this article where the victim was a current or former spouse, current or former sexual or
intimate partner, person with whom the defendant has a child in
common, person with whom the defendant cohabits or has cohabited,
a parent or guardian, the defendant's child or ward or a member of
the defendant's household at the time of the offense, is guilty of
a misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for not less than sixty days nor more than
one year, or fined not more than $1,000, or both fined and
confined.
A person convicted of a violation of subsection (b) of this
section, after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article or subsection (a), section fourteen-g of this article where
the victim was a current or former spouse, current or former sexual
or intimate partner, person with whom the defendant has a child in
common, person with whom the defendant cohabits or has cohabited,
a parent or guardian, the defendant's child or ward or a member of
the defendant's household at the time of the offense or having
previously been granted a period of pretrial diversion pursuant to
section twenty-two, article eleven of this chapter for a violation
of subsection (a) or (b) of this section or subsection (b) or (c),
section nine of this article or subsection (a), section fourteen-g
of this article where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant's
child or ward or a member of the defendant's household at the time
of the offense, shall be confined in a county or regional jail for
not less than thirty days nor more than six months, or fined not
more than $500, or both fined or confined.
(d) Any person who has been convicted of a third or subsequent
violation of the provisions of subsection (a) or (b) of this
section, a third or subsequent violation of the provisions of
section nine of this article or subsection (a), section fourteen-g
of this article where the victim was a current or former spouse,
current or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant's
child or ward or a member of the defendant's household at the time
of the offense or who has previously been granted a period of
pretrial diversion pursuant to section twenty-two, article eleven
of this chapter for a violation of subsection (a) or (b) of this
section or a violation of the provisions of section nine of this
article or subsection (a), section fourteen-g of this article in
which the victim was a current or former spouse, current or former
sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or
a member of the defendant's household at the time of the offense,
or any combination of convictions or diversions for these offenses,
is guilty of a felony if the offense occurs within ten years of a
prior conviction of any of these offenses and, upon conviction
thereof, shall be confinedimprisoned in a state correctional
facility not less than one nor more than five years or fined not
more than $2,500, or both fined and imprisoned.
(e) As used in this section, "family or household member"
means "family or household member" as defined in §48-27-204 of this
code.
(f) A person charged with a violation of this section may not
also be charged with a violation of subsection (b) or (c), section
nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil or
criminal action for false arrest or unlawful detention for
effecting an arrest pursuant to this section or pursuant to §48-27-
1002.

NOTE: The purpose of this bill is to change the common law
definition of battery and bring West Virginia into compliance with
federal laws. This change is requested as result of U.S. vs.
White, 606 F.3d 144. 1002 of this code.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.